Alex Salmond: Why the sanctity of Scots Law remains an important cause and one worth fighting for

Published:21:43Updated:21:44Tuesday 31 May 2011

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LAST week I set out the Scottish Government's priorities for the next 5 years. We share with the people of Scotland an aspiration to bring forward Scottish solutions to the current challenges facing our society.

It is that desire to ensure Scotland is allowed to make its own decisions that fuels this Government's desire for reform of the current position of the UK Supreme Court in Scottish criminal cases.

It is most certainly not, as Lord Hope curiously suggested last week, a misunderstanding of the law and the facts on the part of the Scottish government. Our concerns are shared by senior members of the Scottish judiciary and respected legal figures who have spoken out, including Lord Fraser, the former Lord Advocate.

Like much jurisprudence, it's a complicated business. However, the people of Scotland deserve a straightforward explanation of what is at stake here. This is a practical and moral issue which concerns the rights of victims and their families, whose search for justice is delayed, and leads to cases being decided by a court where the majority of judges are not expert in Scots Law.

It is also a financial issue. The multiplication of such appeal cases has serious cost implications for Scotland, and therefore the ordinary citizen, at a time when public spending is squeezed by London.

And it is an issue of equality and respect - Scots Law has never been subordinate to any other legal system. We are an independent jurisdiction that stands equal to any in Europe. Indeed that position was guaranteed by the Treaty of Union of 1707.

I cannot pass comment on the rights and wrongs of an individual case but last week's developments in the Fraser case illustrate the wider point.

Currently the UK Supreme Court can hear appeals on human rights grounds in Scottish criminal cases even when the High Court of Justiciary in Scotland has not granted leave to appeal. By contrast, in England an appeal to the Supreme Court is possible only with the leave of the Court of Appeal and only when a point of general public importance is at stake.

The intended role of the Supreme Court in Scottish Criminal cases is to consider "devolution issues", mostly issues related to the European Convention on Human Rights. When the Convention was incorporated into the Scotland Act 1998, the Scottish National Party welcomed the move, along with many others. We regarded it as something of a cause for national pride – putting Scotland ahead of the rest of the UK and the Scottish Government continues to believe in protecting the fundamental rights of the citizens of Scotland.

But in practice unforeseen problems have developed which must now be remedied. Article 6 of the Convention which guarantees the right to a fair trial is construed widely by the Supreme Court. This means that it is far easier to raise a "devolution issue" and effectively creates a further right of appeal to the Supreme Court in Scottish Criminal cases. That was never the anticipated role of the Court and is a development which High Court judges in Scotland have expressed concern about. In response to Lord Wallace, the Advocate General's recent consultation on amendments to the Scotland Bill the Scottish judiciary said:

"By a series of incremental decisions… a major constitutional change has already been brought about in relation to the existence of a right of appeal from a decision of the Criminal Appeal Court to the Supreme Court, and that without the public consultation and careful consideration that such a major constitutional change might have been expected to receive. We cannot regard that as a satisfactory situation."

The Scottish Government also responded to that consultation setting out our preferred solution of removing the role of the Supreme Court in Scottish criminal cases altogether. That would bring Scotland back into line with other European jurisdictions and would protect the independence of Scots criminal law, as originally guaranteed back in 1707.

The current situation where criminal appeals decided in Scotland by a court of sometimes as many as 7 Scottish judges can be overruled by a Supreme Court bench made up of five judges – or on occasion seven – with a maximum of two from Scotland, must not be allowed to continue. Lord Wallace has an opportunity to rectify matters in the Scotland Bill. The Scottish Government is willing and able to assist with the preparation of suitable amendments to the Bill and there is still an opportunity for such amendments to be considered by the Scottish Parliament.

If the Bill was amended to restore the High Court as the final court of criminal appeal in Scotland, human rights claims would continue to be raised in Scottish criminal cases. The difference would be that a substantial layer of procedure would be removed. Alleged ECHR breaches in relation to criminal justice matters would be raised under the Human Rights Act in the Scottish courts, to be dealt with by Scottish judges familiar with the Scottish criminal law system, with appeal to the High Court of Justiciary and, just as with any other European Jurisdiction, the possibility of appeal on crucial Human Rights issues to the European Court of Human Rights in Strasbourg. That is the right way forward for a Scotland which believes in standing on its own two feet and has confidence in its own Government, Parliament and Judiciary.